Beverly Hemmings Plaintiff v P.M.C. Ltd (Trading as) Chrissie Tomlinson Hospital Respondent
| Jurisdiction | Cayman Islands |
| Judge | Hon. Justice Richard Williams |
| Judgment Date | 28 February 2013 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G274 OF 2012 |
| Date | 28 February 2013 |
Hon. Justice Richard Williams
As the hearing progressed, Mr. Banks who was appearing for the Plaintiff indicated that the claims in relation to accrued banking hours, overtime and defamation were no longer being pursued. Mr. Banks indicated that only the claims for damages for wrongful dismissal due to a failure to follow a proper disciplinary process and for breaches of the implied term of trust and confidence remained for the Court to determine.
The Plaintiff alleges that she has suffered a loss of the earnings, vacation pay, pension and health benefits which she would have received if the fixed term contract had run to its natural conclusion. The Plaintiff seeks damages for “damage to feelings and loss of dignity” and “potential loss of work at a comparable salary” due to a loss of reputation and preclusion from further employment in her chosen field.
The matter comes before me on the Defendant's application to strike out the Writ and Statement of Claim, with an alternative prayer for summary judgment or in the alternative for the determination of certain questions of law pursuant to Order 14A. The Defendant's position is that all the remaining claims are bad in law.
The attack on the Statement of Claim made by the Defendant is best described by looking at the orders in his Summons filed on 10th September 2012 which are still sought, namely that:
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(i) paragraphs 6 to 56 of the Writ of Summons and Statement of Claim be struck out pursuant to Order 18, rule 19 as disclosing no reasonable cause of action and/or on the basis that they are an abuse of process.
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(ii) each one of the Plaintiff's claims for breach of contract be dismissed and judgment be entered for the Defendant pursuant to Order 14.
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(iii) the Plaintiff's claim for breach of contract (as set out in paragraphs 6 to 56 of the Writ of Summons and Statement of Claim) be dismissed and judgment be entered for the Defendant pursuant to Order 14A.
The facts as indicated in the Statement of Claim which are relevant to the remaining claims can be summarised as follows. The Defendant, PMC Ltd, trades as the Chrissie Tomlinson Memorial Hospital, a private hospital in the Cayman Islands. The Plaintiff was a licensed practical nurse employed at the hospital from 4th May 2007 for a number of years under 3 different contracts. The last, and the relevant, contract was a “Fixed Term Professional Contract” (“the contract”) signed on 12th My 2011 and due to run from 12th My 2011 untill 11th My 2012. During the hearing Mr. Banks conceded that this was the governing contract and that the term was for the abovementioned dates.
The Plaintiffs employment ended on 1st September 2011, with ten months and nine days remaining on her contract, following her dismissal by a letter dated 2nd August 2011. The basis for dismissal set out in the letter was that she had received a final warning on 9th February 2010 and that she had repeated similar gross misconduct on 13th July 2011 when she left her shift early at 4.45 a.m, leaving her colleague “with 4 patients on Medical and Surgical Ward and 1 maternity patient in active labour” thereby threatening “the safe operation of the hospital and left patients at risk.” The Plaintiff strenuously denies the allegations that gave rise to the initial warning letter as well those resulting in the issuance of the dismissal letter. The Plaintiff contends that she had been given permission to leave when she did and that, if a proper investigation had been carried out pursuant to a reasonable disciplinary process, the Defendant would have had to recognise that her actions could not have been construed as being misconduct. In other words, the Plaintiff contends that she would not have been dismissed but for the Defendant's failure to follow a proper disciplinary procedure.
Clause 10 of the contract provided that the Defendant may terminate the contract without notice or pay in lieu of notice for any breach of ethical or professional standards, professional misconduct in the opinion of the Defendant or for violationof any terms of the contractual agreement or serious violation of workplace policy. Clause 15 of the relevant contract provided an option to either party to terminate the contract on 30 days written notice without cause. Despite the contents of Clause 10 and the Defendant dismissing the Plaintiff for cause, she was actually provided with 30 day's written notice.
The Plaintiff contends at paragraph 51 of her Statement of Claim that the Defendant cannot rely on Clause 15 as the dismissal was for cause. The Defendant contends that it matters not if the dismissal was for cause, relying upon the doctrine of “least burdensome obligation”.
The general principle in contract law is that the purpose of damages is to put the innocent party in the position that they would have been but for the breach of contract. Thus, if an employer terminates a contract without notice and does so in breach of contract, the employee may have a claim for breach of contract. This would be a claim for wrongful dismissal. Damages for the wrongful dismissal, even in a fixed contract case, would amount to the number of weeks that the employee should have served in notice but was denied. Although not pleaded in this case, if the employer fails to follow a contractual disciplinary procedure then damages for wrongful dismissal may possibly include losses incurred during the period of time it would have taken for the employer to put the contractualprocedure into effect and be concluded.1 However, the applicability of this proposition is not entirely clear following the views expressed by Lord Dyson at paragraph 60, Lord Phillips at paragraph 87 and Lord Mance at paragraphs 106108 in the two Supreme Court cases of Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Minister of Defence [2012] IRLR 129 [2011] UKSC [2012] IRLR 129.
In a complaint of unfair dismissal, the reason for which the employer actually chose to dismiss the employee is of central importance. In an action for wrongful dismissal, it is possible to justify the dismissal on information acquired after the dismissal. In the matter before me the Defendant had a clear contractual power to dismiss the Plaintiff without cause on 30 days notice and by doing this, albeit by giving another reason, it does not amount to a breach of contract.
Under the doctrine of “least burdensome obligation” where the contract provides an express right to terminate on notice and the contractual right to terminate is not circumscribed by the implied term of trust and confidence, there is a forceful argument that damages arising out of the termination of employment should be confined to the contractual notice period. In the matter before me, the Plaintiff's
least burdensome manner of terminating Miss Hemmings2 contract would have been to have used its power to dismiss on 30 days notice.In the Grand Court case ofRoulstone and Coffee v Cayman Airways Limited (1992–93) CILR 259, Schofield J referred to the following sentiments of Buckley, L.J expressed in the English Court of Appeal case of Gunton v Richmond-upon-Thames London Borough Council [1981] Ch. At 469:
“Where a servant is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so: see McGregor on Damages, 13th ed. (1972), paras 884, 886 and 888.”
Mr. Boni asserts that there is no claim at common law for the damages sought caused by the fact or manner of dismissal. Mr. Boni contends that the Plaintiff is attempting “to dress up an unfair dismissal complaint as a contract complaint and thereby circumvent the statutory provisions limiting rights of action in unfair dismissal cases.” As a consequence, Mr. Boni submits that the Writ of Summons and the Statement of Claim disclose no cause of action against the Defendant and that they are an abuse of process.
Although I may consider affidavit evidence concerning whether there has been an abuse of process, I cannot look at any filed affidavit when considering the application on the ground of no reasonable cause of action: see Order 18 r.19(2). For the latter ground, I have to consider whether, if the allegations in the Statement of Claim were proved at trial, they could support the causes of action asserted against the Defendant. However I must not fall into the temptation, which may arise following receipt of detailed and lengthy submissions in this striking out application, of attempting to now try the issue and make findings of fact. A cause of action with some prospect of success will not be struck out provided the pleadings raise a question fit to be tried; it does not matter that the case might be weak or is unlikely to succeed. A cause of action which is unknown in law will be struck out, as will a cause of action pleaded without some material averment. I may strike out the pleading or part of the pleading if the facts pleaded do notconstitute the cause of action alleged, or if the relief pleaded is not such as court to be ordered by law.
I am also conscious that Courts must be careful not to strike out claims made where facts upon which application of principle of law depend are...
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